27
IACHR has concluded that the State violated the rights mentioned herein, to the detriment of Mr.
Duque.
100. The Commission must emphasize the fact that persons living with HIV are in an
especially vulnerable situation, given the characteristics of the illness, the medical treatment required,
the exclusion and discrimination usually associated with it,86 and other factors. The lack of proper
medical treatment normally injures affected persons’ physical, mental and moral integrity and usually
leads to an early death.87 While in this case the Commission does not have sufficient information about
the continuity, quality and conditions of the medical treatment that Mr. Duque received subsequent to
JOJG’s death, it has established that a number of factors related to his sexual orientation, his illness and
his financial situation took their toll on Mr. Duque.
101. In that context, the Commission considers that the effects of being denied his right to
the survivor’s pension of his deceased permanent partner because of a provision in the law that
discriminated on the basis of sexual orientation; the futile quest for protection and the lack of an
effective and unbiased response from the judicial system; and the suffering he endured because he
could never be certain that the necessary medical treatment would be available to him on a regular
basis, are all factors that have affected Mr. Duque’s right to personal integrity. The Commission
therefore concludes that the State violated the right to personal integrity recognized in Article 5(1) of
the American Convention, read in conjunction with the obligation to respect rights undertaken in Article
1(1) of the Convention, to the detriment of Ángel Alberto Duque.
VI.
CONCLUSIONS
102. Based on the foregoing analysis the Commission concludes that the State of Colombia is
responsible for violation of the rights to personal integrity, judicial guarantees, equality and nondiscrimination, and judicial protection, recognized in articles 5(1), 8(1), 24 and 25 of the American
Convention, read in conjunction with articles 1(1) and 2 thereof, to the detriment of Ángel Alberto
Duque.
VII.
RECOMMENDATIONS
103.
Based on the these conclusions,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS RECOMMENDS THE
FOLLOWING TO THE STATE OF COLOMBIA:
1.
Make adequate reparations to Mr. Ángel Alberto Duque for the human rights violations
declared in this report, including pecuniary and non-pecuniary damages. Such reparation should at least
include the granting of the survivor’s pension and just compensation. Furthermore, the state should
86
IACHR, Report No. 27/09, Merits, Case 12.249, Jorge Odir Miranda Cortez et al, El Salvador, 20 March 2009, par. 70;
See also, inter alia, UNAIDS, Protocol for the identification of discrimination against people living with HIV, 2000. Available at:
http://www.unaids.org/en/media/unaids/contentassets/dataimport/publications/irc-pub01/jc295-protocol_en.pdf;
Pan
American Health Organization, Resolution CD45.R10, Scaling-up of Treatment within a Comprehensive Response to HIV/AIDS,
October 1, 2004. Available at: http://iris.paho.org/xmlui/bitstream/handle/123456789/252/CD45.r10-e.pdf?sequence=2.
87
par. 90.
IACHR, Report No. 63/08, Case 12.534, Admissibility and Merits, Andrea Mortlock, United States, June 25, 2008,